Planning Application - objecting to leaseholder application

[JamesyR]

Hello,

First ever post to a forum! Hoping somebody can give some advice/guidance on a planning application issue we've found ourselves in...

My mother owns the freehold for the ground floor flat in a converted house (and also the leasehold for the upper flat - I think it's called a crossover lease). The leasehold for the ground floor flat has just been purchased by a property developer looking to do the flat up and sell.

Anyway, the leaseholder of the ground floor flat (for which my mother owns the freehold) has now submitted an application for planning for a two-storey, two-apartment building in the back garden without any consultation whatsoever with my mother! The lease quite clearly states that the lessee is obliged...

...(14) Not to alter the external appearance of the Flat or to put up any new building or erection or make any structural addition or structural alteration without previous written consent of the lessor.

There are other issues around parking rights specified in the lease, which the applicant is trying to amend to allow for necessary space to build the apartments, again without consultation with my mother.

We have objected to the application stating the relevant clauses of the lease, but are concerned that there may be loopholes whereby the applicant could force the planning through?

Are the terms of the lease strong enough for planning to be refused, or can people disregard lease contracts these days and build on any back garden??!!

Any advice gratefully received... many thanks in advance - let me know if I need to provide any further info,

Richard

 

[spongobongo]

One of the basic premises of the planning system is that anyone can apply for planning permission for anything they want, provided they serve the correct legal notices on the freeholder of the land and anyone with a leasehold interest with seven or more years remaining on their term.

The leaseholder of the upper flat is therefore perfectly entitled to apply for planning permission. The council is not entitled to approve or refuse permission based on legal clauses in a lease.

However, you state that the leaseholder has not engaged in any consultation with your mother, and so I assume he has failed to serve an Article 12 notice. The notice, which is a legal requirement, must be served on the freeholder. Failure to do so should result in the application being registered as 'invalid' by the Council or, if the application is approved in the meantime, renders the Council's decision vulnerable to challenge by judicial review.

Irrespective of the legal position, should the Council grant planning permission it is worth remembering that the permission cannot legally be implemented without the consent of the landowner which, in this case, is your mother. He will only be in breach of Clause 14 of the lease if he implements the permission without having first sought your mother's consent.

 

[^woody^]

You have no valid complaint against a planning application by using terms of a lease. However other occupiers will have the normal valid complaints regarding how the proposal will affect their amenity ie use of their home

The only other recourse is the lease, and what the leaseholder is permitted to do under its terms. This will be via the civil court or leasehold tribunal

 

[SimonH2]

With the usual IANAL disclaimer ...

I'd suggest that as the freeholder, your mother should write to the leaseholder pointing out that his planned building work puts him in breach of his lease.

You may also wish to look into the lease (and perhaps get professional advice) to see if continued breach of the lease would terminate the lease - thus giving your mother the flat back to "sell again". In other words, if he continues to try and do the building, then he may lose the lease altogether - with it reverting to the freeholder. A quick search suggests that even if there is nothing specified in the lease then there are still legal routes for this.
The threat that the leaseholder could simply "lose" his purchase and be left with nothing should he carry on ought to make him stop !

Apart from that, once you've made it clear that the building is not allowed, then I think you should be able to claim that any builders are committing trespass. Once you've told them to leave, then if they continue they are committing criminal trespass - for which you can call the police.
That does of course require that someone be around to see if/when builders arrive.